IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Frank Carr, :

Plaintiff : Civil Action 2:12-cv-00276

v. : Judge Sargus

Carolyn Colvin, : Magistrate Judge Abel

Commissioner of Social Security,

Defendant :

REPORT AND RECOMMENDATION

Plaintiff Frank Carr brings this action under 42 U.S.C. §§405(g) and 1383(c)(3) for

review of a final decision of the Commissioner of Social Security denying his

applications for Disability Insurance Benefits and Supplemental Security Income

benefits. This matter is before the Magistrate Judge for a report and recommendation

on the parties’ cross-motions for summary judgment.

Summary of Issues. Frank Carr maintain he became disabled at age 45 by back

pain. He was injured at work when he was struck in the head by a 60-pound pipe. He

lost his job as a factory worker due to absences related to his injury. He worked at

McDonalds for eight to nine months before he lost his job because he could no longer

stand due to pain in his knees and legs. 

The administrative law judge found that Carr retained the ability to perform a

reduced range of work having light exertional demands. Plaintiff argues that the

decision of the Commissioner denying benefits should be reversed because:

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• The administrative law judge committed substantial error in relying on an

inaccurate hypothetical question to the vocational expert in reaching his

decision that Carr is not disabled; and,

• The administrative law judge erred when he found plaintiff's allegations

concerning his pain and limitations not credible.

Procedural History. Plaintiff Frank Carr filed his application for disability

insurance benefits on April 27, 2006, alleging that he became disabled on February 15,

2005, at age 45, by arthritis in his back and neck and sinus and allergy problems. (R. 63.) 

The application was denied initially and upon reconsideration. Plaintiff sought a de

novo hearing before an administrative law judge. On April 2, 2010, an administrative

law judge held a hearing at which plaintiff, represented by counsel, appeared and

testified. (R. 377.) A vocational expert and a medical advisor also testified. On June 9,

2010, the administrative law judge issued a decision finding that Carr was not disabled

within the meaning of the Act. (R. 24.) On February 22, 2012, the Appeals Council

denied plaintiff’s request for review and adopted the administrative law judge’s

decision as the final decision of the Commissioner of Social Security. (R. 1-3.)

Age, Education, and Work Experience. Carr was born August 18, 1959. (R. 69.)

He completed the 10th grade. (R. 67.) He has worked as a cook and a factory worker. 

He last worked February 15, 2005. (R. 63-64.) 

Plaintiff’s Testimony. Carr testified that he completed the tenth grade in regular

classes. He served in the Army National Guard for five years. He received an honorable

discharge. In 2004 and 2005, he worked part-time at McDonalds for eight or nine

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months. He stopped working at McDonalds because he had difficulty standing for so

long. His knees and legs started hurting him badly. His back gave him a lot of

problems. He was not permitted to sit down or lean on anything. 

The longest job he held was at B&C Industries as a factory worker where he

lifted rims for cars and trucks. He also worked at a mall doing housekeeping. 

While at work, he was hit in the head with a 60-pound pipe. He returned to work

a week later. He started having very bad headaches and back pain. He was fired from

his job for missing too many days. He started experiencing more problems with his left

leg similar to what he had been having with his right leg. He experiences numbness in

his left hip.

Carr had renal disease. He testified that his kidneys hurt, although sometimes he

cannot tell if the pain is from his kidneys or his back. Because of issues with his kidneys,

Carr is unable to take certain pain medications. 

Carr testified that he had a little problem picking up a gallon of milk. He tried to

do as much as he could because he has custody of his 10-year old daughter. He was

using a cane because he had blacked out a few days earlier and fell down some steps.

He stopped driving because he was having black outs. He rated his typical pain as a 4

or 5 on a 10-point scale. He had headaches 3-4 times per month. The headaches last a

week or more. Sometimes his headaches are so bad that he cannot eat or sleep. 

Carr testified that he could walk for almost a block. He walks his daughter school

which is a block and a half away and then walks back home. His sister helps him care

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for his daughter in addition to his friend that he is staying with. He has difficulty

sitting. He elevates his legs to relieve his pain. He uses heat and ice on his legs and also

performs stretching exercises. 

His medications upset his stomach. He had difficulty falling and staying asleep

because of pain in his legs. 

His friend does the cooking and housekeeping, although he tries to help. Carr

washed dishes. He could not vacuum because of the pain. He folded clothes. He had

good days and bad days. On good days, he could go outside and walk around a little

bit. He had three or four good days a month. On bad days, his legs hurt so much that he

moans and groans and cannot do anything. It hurt so much that he could not eat. (R.

381-401.) 

Medical Evidence of Record. The administrative law judge’s decision fairly sets

out the relevant medical evidence of record. This Report and Recommendation will,

nonetheless, summarize that evidence in some detail. 

Summa Health System. On July 2, 2004, plaintiff presented at the emergency

department with complaints of chronic low back pain after being injured by a pipe. He

reported that NSAIDS and muscle relaxants were not providing him with relief. His

pain increased with movement and improved with rest. The pain radiated into his right

leg. On physical examination, plaintiff had pain on palpation over his lower lumbar

back. Cranial nerves II-XII were intact. Strength in all extremities was 5/5. DTRs were

+2. (R. 121.) 

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On May 1, 2006, plaintiff presented at the emergency department with

complaints of back pain and numbness in his legs. On physical examination, plaintiff

had mild tenderness to palpation along the paraspinal muscles. There was no vertebral

point tenderness or bony stepoff. He was neurovascularly intact to the bilateral lower

extremities. DTRs were +2, equal and symmetric. Plaintiff received injections of Norflex

and Toradol. (R. 107.)

On June 14, 2006, plaintiff presented at the emergency department with

complaints of back pain radiating down into the right lower extremity. He described his

pain as burning and sharp that radiated into his right leg. Movement aggravated the

pain, and nothing relieved his pain. His primary care physician prescribed Ultram, a 

muscle relaxant and NSAIDs, which did not fully control his symptoms. He had

concerns about using narcotics because of his history of hepatitis C. On physical

examination, plaintiff was in mild to moderate distress. He had tenderness to palpation

on the lower lumbar. Range of motion was intact, except with flexion, which was

markedly reduced. Deep tendon reflexes were minimally decreased on the right patella.

(R. 141.) 

A May 7, 2007 CT of plaintiff’s lumbar spine revealed significant facet arthritis

and disc disease at the L5-S1 level with narrowing of the interior aspect of the neural

exit foramina. (R. 150.) A June 29, 2007 MRI of the lumbar spine revealed degenerative

changes of the lumbar spine, most apparent at the L5/S1 level. There was some mild

bulging of the disc, although part of this was due to uncovering of the disc secondary to

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slight listhesis. Thee was moderate facet and ligament hypertrophy. There was no

significant canal narrowing. There was mild bilateral neural foraminal narrowing. (R.

151.) 

A June 29, 2007 of plaintiff’s hips showed that the extrapelvic musculature was

symmetric and normal in appearance. There was loss of T2 signal within the L5-S1

intravertebral disc, consistent with degenerative disc disease. (R. 152.) 

Steven A. Severyn M.D. On June 25, 2007, Dr. Severyn, a physician with the Ohio

State University Spine Center, diagnosed right hip pain, lumbar disc displacement

without myelopathy, and possible right-sided radiculitis. Plaintiff reported a workrelated injury in which he was struck in the head by a 60-pound pipe. He lost

consciousness. As a result of the accident, plaintiff suffered from pain in his right hip

and in the lumbar region of his lower back. 

On physical examination, his straight leg raising findings were negative. He had

intact and symmetric reflexes at the knees and ankles. He had 80 degrees forward

flexion and 20 degrees posterior extension with intact and normal ranges of motion for

lateral rotation and lateral bending. There was tenderness of the lumbar spinous

processes, but there was no paraspinal spasm. Motor strength and sensory findings

were normal throughout. Examination of the hip finds a slight limitation of external

rotation in the right hip with some reproduction of his pain. (R. 177-78.)

 On July 13, 2007, Dr. Severyn noted the possibility that plaintiff could be

suffering from impingement syndrome in his right hip, as indicated by the by the

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presence of the small joint effusion. Based on diagnostic imaging, Dr. Severyn believed

that plaintiff’s right-sided pain was more likely a manifestation of radiculitis associated

with the claimant’s moderately severe L5-S1 spondylolisthesis. Dr. Severyn believed

that the overall causes of plaintiff’s lumbar and radicular pain were ligamentous stress

and strain and degenerative changes at the L5-S1 level. He noted that the S1

antherolisthesis accounted for the stenotic behavior of the S1 nerve, which was likely

causing the claimant’s radicular discomfort as well. He believed that the L5 distribution

pain the claimant was experiencing was more indicative of radiculitis than nerve root

ischemia. As a result, Dr. Severyn recommended that plaintiff undergo a series of

lumbar epidural injections. (R. 161-62.) 

On November 7, 2008, Dr. Severyn noted that plaintiff underwent a series of

three epidural injections, but his improvement only lasted slightly less than a month.

On physical examination, plaintiff had flexion of 60 degrees and posterior extension of

10 degrees with palpation. He had tenderness in the paravertebral muscle regions.

Twisting in the lower lumbar region reproduced his back pain but not the radicular

complaint. (R. 318-19.) 

Kimberly Austin, M.D. In a September 12, 2007 letter, Dr. Austin, plaintiff’s

primary care physician, noted that plaintiff was treated for hypertension, hepatitis C,

and GERD. Dr. Austin stated that plaintiff’s hypertension was uncontrolled, and he

experienced lightheadedness and dizziness due to his elevated blood pressure. (R. 189.) 

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On January 9, 2009, plaintiff’s blood pressure was 164/112. On February 2, 2009,

Dr. Austin noted that plaintiff’s blood pressure had improved from the previous visit.

He had no episodes of dizziness, although when he experienced a lot of pain he felt

lightheaded when he stood up. (T. 226-27.) On June 23, 2009, plaintiff’s blood pressure

was 120/86. He was diagnosed with hypertension, benign (essential). (R. 216-17.) On

August 24, 2009, Dr. Austin stated plaintiff’s blood pressure was doing well, although

she noted it was low and it might be the cause of his lightheadedness and dizziness. (R.

290-92.) 

Willa Caldwell, M.D. On January 3, 2008, Dr. Caldwell, a state agency reviewing

physician, completed a physical residual functional capacity assessment (doc. 199). Dr.

Caldwell opined that plaintiff could occasionally lift and/or carry 50 pounds and

frequently lift and/or carry 25 pounds. Plaintiff could stand and/or walk for about 6

hours in an 8-hour day. He could sit for about 6 hours in an 8-hour day. He was

unlimited in an ability to push and/or pull. Carr could never climb ladders, ropes, or

scaffolds. Dr. Caldwell concluded that plaintiff’s allegations were partially credible, but

he appeared capable of exertion set forth in her residual functional capacity. (R. 199-

206.) 

Ohio State University Health System records include an April 21, 2008 of MRI of

plaintiff’s lumbar spine that revealed mild antherolisthesis of L5 on S1 associated with

stable moderate degenerative changes. No gross movement was observed with flexion

or extension. MRI imaging revealed stable, mild antherolisthesis, stable moderate disc

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degeneration at the L5-S1 level, stable broad based posterior disc

protrusion/uncovering of disc material posteriorily at the L5-S1 level with significant

bilateral facet hypertropic changes resulting in moderate narrowing of the neural

foramina bilaterally, without significant spinal stenosis. There was slight, stable bulging

of the posterior margin of the discs at the L4-L5 and L3-L4 levels without significant

spinal stenosis or neural foraminal narrowing. In addition, there was mild bilateral

facet hypertrophy at the L4-L5 level. The overall impression was no significant interval

change since the June 29, 2007 examination. (R. 338-39.)

An April 29, 2008 vascular study of plaintiff’s lower extremities revealed normal

pressures and waveform at rest. Right and left great toe-brachial indexes were normal

at rest. Plaintiff had normal arterial perfusion in both lower extremities with no

evidence of hemodynamically significant lower extremity arterial disease either at rest

or with exercise. (R. 336-37.)

A July 28, 2008 EMG study revealed normal sensory conduction in the right sural

nerve and motor conductions in the right peroneal nerve. Needle electrode testing was

normal. (R. 375-76.) 

In 2009, plaintiff underwent two medial branch blocks, which provided him with

40-50% improvement in his pain. In March and October 2009, plaintiff underwent

bilateral radio-frequency ablations of the L3-L4, L4-L5 and L5-S1 medial branch nerves.

(R. 237-39, 244-46.)

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On September 9, 2009, plaintiff received an injection for left hip greater

trochanteric bursitis. (R. 298-99.)

Jaymes Granata, M.D. On January 5, 2010, Dr. Granata performed a disability

examination for the Bureau of Disability Determination (R. 270-83.) Carr reported that

he initially injured his back in 2002. Since the injury, plaintiff’s back has become

progressively worse. He complained of a constant dull, achy pain. He experienced

intermittent pain with movement and radiation to both legs down into his heels. He

rated these sharp exacerbations in pain as a ten on a ten-point scale. During these

episodes, plaintiff could not move without significant pain throughout the back and

lower legs. He received some relief from heat pads and nonsteroidal antiinflammatories. Lifting weights greater than 40 pounds and bending increased his pain.

He had received multiple injections, but they provided him little relief. Physical therapy

did not help him at all. 

On physical examination, plaintiff had a normal gait. He was able to perform a

heel to toe walk, heel walk, and toe walk without difficulty. He did not have any

swelling, erythema, atrophy or deformities. Plaintiff had mild tenderness to palpation

in his lower back, both midline and paraspinal. Carr was able to stand from a chair, get

on and off the table, grasp, write, perform fine motor activities, and reach overhead

without difficulties. He had full active and passive range of motion with 5/5 strength of

upper and lower extremities bilaterally. There were no focal sensory deficits. He had

2/4 reflexes in patellar, Achilles and triceps. 

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Dr. Granata diagnosed chronic low back pain. Dr. Granata opined that plaintiff

was able to perform all job-related activities related to sitting, standing, walking, lifting,

carrying, handling objects, hearing, speaking, and traveling. Plaintiff appeared limited

in lifting heavy weights and bending repetitively. Plaintiff reported that lifting more

than 30 pounds gave him significant back pain. (R. 270-72.) 

Dr. Granata completed a Medical Source Statement of Ability to do WorkRelated Activities (Physical) form. Dr. Granata opined that plaintiff could continuously

lift or carry up to 20 pounds, frequently lift up to 50 pounds and occasionally lift up to

100 pounds. Plaintiff could sit, stand, or walk for 4 hours in an day. Plaintiff could

frequently climb stairs, ramps, ladders, or scaffolds. He could occasionally balance,

stoop, kneel, crouch, or crawl. He could tolerate occasional exposure to unprotected

heights, moving mechanical parts, operating a motor vehicle, humidity and wetness,

dust, odors, fumes and pulmonary irritants, extreme cold, extreme heat, or vibrations.

(R. 273- 78.)

Testimony of Medical Expert. Paul F. Gatens, M.D., a Board-certified specialist

in physical medicine and rehabilitation, testified at the hearing. Dr. Gatens testified that

Carr had normal arterial effusion to both lower extremities and that there was no

evidence of hemodynamically significant lower extremity arterial disease. (R. 402-03.)

Dr. Gatens concluded that plaintiff did not meet or equal the Listings for 4.12, 1.02A or

1.04. (R. 403-04.)

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Dr. Gatens opined that plaintiff could lift 20 pounds occasionally and 10 pounds

frequently. His biggest limitation was with respect to standing and walking. Plaintiff

could only stand and/or walk for 4 to 5 hours in an 8-hour shift if he could change

positions every 45 minutes. Carr could sit for 6 hours in an 8-hour shift if he could

change positions every 90 minutes. Dr. Gatens further opined that plaintiff should

avoid ropes, ladders, scaffolds and dangerous equipment. He could occasional crouch,

kneel or crawl. (R. 404.) 

Administrative Law Judge’s Findings. 

1. The claimant meets the insured status requirements of the Social

Security Act through September 30, 2007.

2. The claimant has not engaged in substantial gainful activity since

February 15, 2005, the alleged onset date (20 CFR 404.1571 et seq.,

and 416.971 et seq.).

3. Based on the objective medical evidence, the claimant has the

following severe impairments best described as: lower back

degenerative disc disease at the L3-4 and L4-5 levels,

spondylolisthesis at the L5-S1 level, chronic low back pain, status

post bilateral hip bursitis, vascular lower extremity radiculitis,

headaches and past history of hepatitis (inactive currently) C (20

CFR 404.1520(c) and 416.920(c)).

4. Based on the objective medical evidence, the claimant does not

have an impairment or combination of impairments that meets or

medically equals one of the listed impairments in 20 CFR Part 404,

Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,

416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, the undersigned

finds that the claimant has the residual functional capacity to

perform a reduced range of light work as defined in 20 CFR

404.1567(b) and 416.967(b). Specifically, the claimant can lift and/or

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carry ten pounds frequently and twenty pounds occasionally. He

can [sit] for ninety minutes at a time for a total of six to eight hours

in an eight hour workday, provided he be allowed to change

positions, and stand and/or walk for forty-five minutes at a time

for a total of four to five hours in an eight-hour workday. He

cannot climb ropes, scaffolds or ladders but can kneel, stoop,

crouch and crawl occasionally. He is precluded from working

around hazardous or moving machinery.

6. The claimant is unable to perform any past relevant work (20 CFR

404.1565 and 416.965).

7. The claimant was born on August 18, 1959 and was 45 years old,

which is defined as a younger individual age 18-49, on the alleged

disability onset date (20 CFR 404.1563 and 416.963).

8. The claimant has a limited education and is able to communicate in

English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of

disability because using the Medical-Vocational Rules as a

framework supports a finding that the claimant is "not disabled,"

whether or not the claimant has transferable job skills (See SSR 82-

41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the claimant's age, education, work experience, and

residual functional capacity, there are jobs that exist in significant

numbers in the national economy that the claimant can perform (20

CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

11. The claimant has not been under a disability, as defined in the

Social Security Act, from February 15, 2005, through the date of this

decision (20 CFR 404.1520(g) and 416.920(g)).

(R. 13-23.) 

Standard of Review. Under the provisions of 42 U.S.C. §405(g), "[t]he findings

of the Commissioner as to any fact, if supported by substantial evidence, shall be

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conclusive. . . ." Substantial evidence is "'such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389,

401 (1971)(quoting Consolidated Edison Company v. NLRB, 305 U.S. 197, 229 (1938)). It is

"'more than a mere scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir.

1976). The Commissioner's findings of fact must be based upon the record as a whole. 

Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366

(6th Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir. 1984). In determining

whether the Commissioner's decision is supported by substantial evidence, the Court

must "'take into account whatever in the record fairly detracts from its weight.'" Beavers

v. Secretary of Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir. 1978)(quoting

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1950)); Wages v. Secretary of Health and

Human Services, 755 F.2d 495, 497 (6th Cir. 1985).

Plaintiff’s Arguments. Plaintiff argues that the decision of the Commissioner

denying benefits should be reversed because:

• The administrative law judge committed substantial error in relying on an

inaccurate hypothetical question to the vocational expert in reaching his

decision that Carr is not disabled. Plaintiff argues that the administrative law

judge’s hypothetical question to the vocational expert did not contain all of his

limitations, and, as a result, the testimony of the vocational expert does not

constitute substantial evidence supporting the administrative law judge’s

findings. Plaintiff maintains that the consultative examiner concluded that

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Carr is limited to sitting, standing, and walking for 4 hours in an 8-hour

workday, occasional balancing, and occasional exposure to environmental

conditions such as unprotected heights, extreme temperatures, pulmonary 

irritants, and vibrations. Although the administrative law judge determined

that the findings of the consultative examiner were supported by the medical

evidence overall, these limitations were not in the hypothetical question posed

to the vocational expert. The administrative law judge’s residual functional

capacity assessment failed to include limitations on bending and twisting due

to Carr’s decreased lumbar spine range of motion. Carr also experiences

significant headaches. He has hypertension and his chronic pain causes

episodes of lightheadedness and black outs. 

• The administrative law judge erred when he found plaintiff's allegations

concerning his pain and limitations not credible. Plaintiff argues that the

administrative law judge based his credibility determination largely on the

basis that there were not atrophy findings. Plaintiff maintains that the

administrative law judge overlooked records tending to show that Carr

experiences significant pain. The administrative law judge failed to

acknowledge findings of reduced joint motion and muscle spasm. Carr’s range

of motion was described as markedly reduced, and the consultative examiner

found that his dorsolumbar spine range of motion was reduced by 50 percent

for extension, flexion and bilateral lateral flexion. Carr’s treating physicians

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consistently believed Carr’s allegations of severe pain. Plaintiff further argues

that the administrative law judge is not a medical expert and cannot discount

and reject medical findings and conclusions of physicians. 

Analysis. 

Accuracy of Hypothetical Given Vocational Expert: Legal Standard. Plaintiff

argues that the Administrative Law Judge's hypothetical to the vocational expert was

not supported by substantial evidence because the consultative examiner concluded

that Carr is limited to sitting, standing, and walking for 4 hours in an 8-hour workday,

occasional balancing, and occasional exposure to environmental conditions such as

unprotected heights, extreme temperatures, pulmonary irritants, and vibrations.

In determining whether a claimant is disabled, an administrative law judge

makes a residual functional capacity determination. That finding is an “assessment of

the claimant’s remaining capacity for work" once his or her limitations have been taken

into account. 20 C.F.R. § 416.945. It is “a more complete assessment of her physical and

mental state and should include an ‘accurate[ ] portray[al] [of her] individual physical

and mental impairment[s].’ Varley, 820 F.2d at 779; Myers v. Weinberger, 514 F.2d 293,

294 (6th Cir.1975) (per curiam).” Howard v. Commissioner of Social Security, 276 F.3d 235,

239 (6th Cir. 2002).

When a vocational expert testifies, the administrative law judge asks the expert

to assume certain facts about the claimant’s work abilities. The facts in this hypothetical

are the administrative law judge’s residual functional capacity findings. The

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administrative law judge must accurately state each limitation that affects the claimant’s

ability to work. If there is not substantial evidence supporting the limitations the

administrative law judge includes in the hypothetical to the vocational expert, then the

expert’s testimony is not substantial evidence supporting the Commissioner’s decision

denying benefits. Howard, 276 F.3d at 240-42. If a limitation that substantially affects

the claimant’s ability to work is established by uncontroverted medical evidence, it is

error for the administrative law judge to omit this limitation from the hypothetical

given the administrative law judge. 276 F.3d at 242. 

Accuracy of Hypothetical Given Vocational Expert: Discussion. The

administrative law judge concluded that plaintiff retained the residual functional

capacity to lift and/or carry 10 pounds frequently and 20 pounds occasionally; he could

sit for up to 90 minutes at a time and stand and/or walk for 45 minutes for up to a total

of four to five hours. The residual functional capacity is supported by substantial

evidence. The administrative law judge relied on the testimony of the medical expert.

The administrative law judge rejected the opinion of Dr. Granata, the examining

physician, to the extent is was inconsistent with the opinion of Dr. Gatens. Dr. Granata’s

opinion, however, concluded that plaintiff retained greater abilities than that of the

residual functional capacity formulated by the administrative law judge. The

administrative law judge properly rejected the opinion of the reviewing physician who

concluded that plaintiff was capable of medium exertion because evidence received

after this assessment demonstrated that plaintiff had greater limitations. The

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administrative law judge rejected the hypothetical questions posed by plaintiff’s

counsel on the basis that the added limitations were without rational basis in the record.

The administrative law judge did not err by relying on Dr. Gatens’ testimony. Dr.

Gatens is a Board-certified physical medicine and rehabilitation specialist. Dr. Gatens

had access to the entire record, and his opinion was well-supported and consistent with

the evidence. 

Plaintiff also argues that the administrative law judge overlooked the limitations

imposed by his hypertension, which was caused by his chronic pain. Carr maintains

that he experienced dizziness and lightheadedness as a result of hypertension. Plaintiff

maintains that the administrative law judge erred when he failed to recognize

hypertension as one of Carr’s severe impairments. Plaintiff has not demonstrated how

his hypertension further limited his residual functional capacity. Carr alleges that he

experienced lightheadedness and dizziness, and the administrative law judge

formulated a residual functional capacity that precluding work that involved climbing

ropes, scaffolds or ladders and working around hazardous or moving machinery.

Credibility Determination. Pain is an elusive phenomena. Ultimately, no one can

say with absolute certainty whether another person's subjectively disabling pain and

other symptoms preclude all substantial gainful employment. The Social Security Act

requires that the claimant establish that he is disabled. Under the Act, a "disability" is

defined as "inability to engage in any substantial gainful activity by reason of any

medically determinable or mental impairment which can be expected . . . to last for a

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continuous period of not less than 12 months. . . ." 42 U.S.C. §423(d)(1)(A) (emphasis

added).

Under the provisions of 42 U.S.C. §423(d)(5)(A), subjective symptoms alone

cannot prove disability. There must be objective medical evidence of an impairment

that could reasonably be expected to produce disabling pain or other symptoms :

An individual's statement as to pain or other symptoms shall not

alone be conclusive evidence of disability as defined in this section;

there must be medical signs and findings, established by medically

acceptable clinical or laboratory diagnostic techniques, which show

the existence of a medical impairment that results from anatomical,

physiological, or psychological abnormalities which could

reasonably be expected to produce the pain or other symptoms

alleged and which, when considered with all evidence required to be

furnished under this paragraph (including statements of the

individual or his physician as to the intensity and persistence of such

pain or other symptoms which may reasonably be accepted as

consistent with the medical signs and findings), would lead to a

conclusion that the individual is under a disability. Objective

medical evidence of pain or other symptoms established by

medically acceptable clinical or other laboratory techniques (for

example, deteriorating nerve or muscle tissue) must be considered in

reaching a conclusion as to whether the individual is under a

disability.

The Commissioner’s regulations provide a framework for evaluating a claimant’s

symptoms consistent with the commands of the statute:

(a) General. In determining whether you are disabled, we consider

all your symptoms, including pain, and the extent to which your

symptoms can reasonably be accepted as consistent with the

objective medical evidence and other evidence. By objective medical

evidence, we mean medical signs and laboratory findings as defined

in §404.1528(b) and (c). By other evidence, we mean the kinds of

evidence described in §§404.1512(b)(2) through (6) and

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404.1513(b)(1), (4), and (5) and (e). These include statements or

reports from you, your treating or examining physician or

psychologist, and others about your medical history, diagnosis,

prescribed treatment, daily activities, efforts to work and any other

evidence showing how your impairment(s) and any related

symptoms affect your ability to work. We will consider all of your

statements about your symptoms, such as pain, and any description

you, your physician, your psychologist, or other persons may

provide about how the symptoms affect your activities of daily living

and your ability to work. However, statements about your pain or

other symptoms will not alone establish that you are disabled; there

must be medical signs and laboratory findings which show that you

have a medical impairment(s) which could reasonably be expected to

produce the pain or other symptoms alleged and which, when

considered with all of the other evidence (including statements about

the intensity and persistence of your pain or other symptoms which

may reasonably be accepted as consistent with the medical signs and

laboratory findings), would lead to a conclusion that you are

disabled. In evaluating the intensity and persistence of your

symptoms, including pain, we will consider all of the available

evidence, including your medical history, the medical signs and

laboratory findings and statements about how your symptoms affect

you. (Section 404.1527 explains how we consider opinions of your

treating source and other medical opinions on the existence and

severity of your symptoms, such as pain.) We will then determine

the extent to which your alleged functional limitations and

restrictions due to pain or other symptoms can reasonably be

accepted as consistent with the medical signs and laboratory findings

and other evidence to decide how your symptoms affect your ability

to work.

20 C.F.R. §404.1529(a). A claimant’s symptoms will not be found to affect his ability to

work unless there is a medically determinable impairment that could reasonably be

expected to produce them. 20 C.F.R. § 404.1529(b). If so, the Commissioner then

evaluates the intensity and persistence of the claimant’s pain and other symptoms and

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determines the extent to which they limit his ability to work. 20 C.F.R. § 404.1529(c). In

making the determination, the Commissioner considers

all of the available evidence, including your history, the signs and

laboratory findings, and statements from you, your treating or nontreating

source, or other persons about how your symptoms affect you. We also

consider the medical opinions of your treating source and other medical

opinions . . . .

Id.

In this evaluation of a claimant’s symptoms, the Commissioner considers both

objective medical evidence and “any other information you may submit about your

symptoms.” 20 C.F.R. § 404.1529(c)(2). The regulation further provides:

Because symptoms, such as pain, are subjective and difficult to quantify,

any symptom-related functional limitations and restrictions which you,

your treating or nontreating source, or other persons report, which can

reasonably be accepted as consistent with the objective medical evidence

and other evidence, will be taken into account as explained in paragraph

(c)(4) of this section in reaching a conclusion as to whether you are

disabled. We will consider all of the evidence presented, including

information about your prior work record, your statements about your

symptoms, evidence submitted by your treating or nontreating source,

and observations by our employees and other persons. Section 404.1527

explains in detail how we consider and weigh treating source and other

medical opinions about the nature and severity of your impairment(s) and

any related symptoms, such as pain. Factors relevant to your symptoms,

such as pain, which we will consider include:

(I) Your daily activities;

(ii) The location, duration, frequency, and intensity of your pain or

other symptoms;

(iii) Precipitating and aggravating factors;

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(iv) The type, dosage, effectiveness, and side effects of any medication

you take or have taken to alleviate your pain or other symptoms;

(v) Treatment, other than medication, you receive or have received for

relief of your pain or other symptoms;

(vi) Any measures you use or have used to relieve your pain or other

symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes

every hour, sleeping on a board, etc.); and

(vii) Other factors concerning your functional limitations and

restrictions due to pain or other symptoms.

 20 C.F.R. § 404.1529(c)(3). When determining the extent to which a claimant’s

symptoms limit his ability to work, the Commissioner considers whether the claimant’s

statements about the symptoms is supported by or inconsistent with other evidence of

record:

In determining the extent to which your symptoms, such as pain, affect

your capacity to perform basic work activities, we consider all of the

available evidence described in paragraphs (c)(1) through (c)(3) of this

section. We will consider your statements about the intensity, persistence,

and limiting effects of your symptoms, and we will evaluate your

statements in relation to the objective medical evidence and other

evidence, in reaching a conclusion as to whether you are disabled. We will

consider whether there are any inconsistencies in the evidence and the

extent to which there are any conflicts between your statements and the

rest of the evidence, including your history, the signs and laboratory

findings, and statements by your treating or nontreating source or other

persons about how your symptoms affect you. Your symptoms, including

pain, will be determined to diminish your capacity for basic work

activities to the extent that your alleged functional limitations and

restrictions due to symptoms, such as pain, can reasonably be accepted as

consistent with the objective medical evidence and other evidence.

 20 C.F.R. § 404.1529(c)(4).

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SSR 96-7p explains the two-step process established by the Commissioner’s regulations

for evaluating a claimant’s symptoms and their effects: 

First, the adjudicator must consider whether there is an underlying

medically determinable physical or mental impairment(s)--i.e., an impairment(s)

that can be shown by medically acceptable clinical

and laboratory diagnostic techniques--that could reasonably be

expected to produce the individual’s pain or other symptoms. The

finding that an individual’s impairment(s) could reasonably be

expected to produce the individual’s pain or other symptoms does

not involve a determination as to the intensity, persistence, or

functionally limiting effects of the individual’s symptoms. . . .

 Second, once an underlying physical or mental impairment(s) that

could reasonably be expected to produce the individual’s pain or

other symptoms has been shown, the adjudicator must evaluate

the intensity, persistence, and limiting effects of the individual’s

symptoms to determine the extent to which the symptoms limit

the individual’s ability to do basic work activities. For this

purpose, whenever the individual’s statements about the intensity,

 persistence, or functionally limiting effects of pain or other

symptoms are not substantiated by objective medical evidence,

the adjudicator must make a finding on the credibility of the individual’s

statements based on a consideration of the entire case record. 

When additional information is needed to assess the credibility of

the individual’s statements about symptoms and their effects, the

adjudicator must make every reasonable effort to obtain available

information that could shed light on the credibility of the

individual’s statements. In recognition of the fact that an

individual’s symptoms can sometimes suggest a greater level of

severity of impairment than can be shown by the objective

medical evidence alone, 20 C.F.R. § 404.1529(c) and 416.929(c)

describe the kinds of evidence, including the factors below, that

the adjudicator must consider in addition to the objective

medical evidence when assessing the credibility of an

individual’s statements:

1. The individual’s daily activities;

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2. The location, duration, frequency, and intensity of the

individual’s pain or other symptoms;

3. Factors that precipitate and aggravate the symptoms;

4. The type, dosage, effectiveness, and side effects of any

medication the individual takes or has taken to alleviate

pain or other symptoms;

5. Treatment, other than medication, the individual receives

 or has received for relief of pain or other symptoms;

6. Any measures other than treatment the individual uses

or has used to relieve pain or other symptoms (e.g. lying

flat on his or her back, standing for 15 to 20 minutes every

hour, or sleeping on a board); and

7. Any other factors concerning the individual’s functional

limitations and restrictions due to pain or other symptoms.

Case law interpreting the statute and regulations. At the outset, it is important to

keep in mind that symptoms are the claimant’s “description of [his/her] physical or

mental impairment.” 20 C.F.R. § 404.1528(a). Inevitably, evaluating symptoms involves

making credibility determinations about the reliability of the claimant’s self-report of

his symptoms. Smith ex rel E.S.D. v. Barnhart, 157 Fed.Appx. 57, 62 (10th Cir. December.

5, 2005) (not published)(“Credibility determinations concern statements about symptoms.”) 

“Where the symptoms and not the underlying condition form the basis of the

disability claim, a two-part analysis is used in evaluating complaints of disabling pain.” 

Rogers v. Commissioner of Social Sec., 486 F.3d 234, 247 (2007); SSR 96-7p, 1996 WL 374186

(July 2, 1996). That test was first set out in Duncan v. Secretary of Health and Human

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Services, 801 F.2d 847, 853 (6th Cir. 1986). First, the Court must determine "whether there

is objective medical evidence of an underlying medical condition." If so, the Court must

then

examine: (1) whether objective medical evidence confirms the

severity of the alleged pain arising from the condition; or (2)

whether the objectively established medical condition is of such a

severity that it can reasonably be expected to produce the alleged

disabling pain.

Duncan, 801 F.2d at 853. Any "credibility determinations with respect to subjective

complaints of pain rest with the ALJ." Siterlet v. Secretary of Health and Human Services,

823 F.2d 918, 920 (6th Cir. 1987); Rogers, 486 F.3d at 247 (citing Walters v. Comm'r of Soc.

Sec., 127 F.3d 525, 531 (6th Cir.1997); Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir.1990);

Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 538 (6th Cir.1981)). The ALJ is

required to explain her credibility determination in her decision, which “‘must be

sufficiently specific to make clear to the individual and to any subsequent reviewers the

weight the adjudicator gave to the individual’s statements and the reasons for that

weight.’” See id. (quoting SSR 96-7p). Furthermore, the ALJ’s decision must be supported by substantial evidence. Rogers, 486 F.3d at 249. 

Discussion of ALJ’s credibility determination. The administrative law judge

concluded that the record did not contain sufficient objective medical evidence to

substantiate the severity of pain and degree of functional limitations alleged by

plaintiff. The administrative law judge noted the lack of objective findings in his

physical examinations. Despite the presence of subjective findings, such as limited

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range of motion due to pain or pain palpation, no focal motor deficits were

documented. The administrative law judge indicated that he would have expected

plaintiff to seek medical treatment with greater regularity if his pain was as severe and

disabling as alleged. The administrative also determined that the medical evidence

showed that Carr’s medications had been relatively effective in controlling his

symptoms. Additionally, Carr’s treating physician never referred plaintiff to an

orthopedic surgeon. The administrative law judge properly considered plaintiff’s daily

activities. He concluded that his activities were not consistent the level and persistence

of symptoms alleged. Plaintiff assisted with cooking, cleaning, washing dishes and

walking his daughter to school. (R. 392 and 398.) In October 2007, plaintiff’s treating

physician noted that he was employable and that his impairment did not interfere with

his activities of daily living. (R. 373.) On September 2009, he reported that Carr was

employable and that his impairments only slightly interfered with his activities of daily

living. (R. 301.) The administrative law judge also indicated that plaintiff showed no

evidence of pain or discomfort at the hearing. As a result, the administrative law judge’s

credibility assessment is supported by substantial evidence in the record. 

From a review of the record as a whole, I conclude that there is substantial

evidence supporting the administrative law judge's decision denying benefits. 

Accordingly, it is RECOMMENDED that the decision of the Commissioner of Social

Security be AFFIRMED. It is FURTHER RECOMMENDED that plaintiff’s motion for

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summary judgment be DENIED and that defendant’s motion for summary judgment

be GRANTED.

If any party objects to this Report and Recommendation, that party may, within

fourteen (14) days, file and serve on all parties a motion for reconsideration by the

Court, specifically designating this Report and Recommendation, and the part thereof

in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),

Fed. R. Civ. P.

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District

Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.

Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See

also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989). 

s/Mark R. Abel 

United States Magistrate Judge 

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